State v. Mendoza

• Decision Date: 09 June 2020
• Docket Number: No. 2 CA-CR 2019-0281-PR,2 CA-CR 2019-0281-PR
• Citation: 249 Ariz. 180,467 P.3d 1120
• Parties: The STATE of Arizona, Respondent, v. Israel Christopher MENDOZA Jr., Petitioner.
• Court: Arizona Court of Appeals

249 Ariz. 180

467 P.3d 1120

The STATE of Arizona, Respondent,

v.Israel Christopher MENDOZA Jr., Petitioner.

No. 2 CA-CR 2019-0281-PR

Court of Appeals of Arizona, Division 2.

Filed June 9, 2020

Israel Mendoza, Tucson, In Propria Persona

Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred.

ECKERSTROM, Judge:

¶1 Israel Mendoza Jr. seeks review of the trial court's rulings denying his first petition for and second notice of post-conviction relief, both filed pursuant to Rule 33, Ariz. R. Crim. P.¹ We will not disturb those rulings unless the court has abused its discretion. See State v. Martinez , 226 Ariz. 464, ¶ 6, 250 P.3d 241 (App. 2011). For the following reasons, we grant review and relief in part.

¶2 Pursuant to a plea agreement, Mendoza was convicted of second-degree murder. The trial court sentenced him to a partially aggravated, twenty-year prison term. Mendoza initiated a proceeding for post-conviction relief, and appointed counsel filed a notice, also known as a Montgomery notice,² stating that she could find no colorable claims to raise in a Rule 33 petition. The court allowed Mendoza to proceed pro se, and, in his petition, Mendoza asserted that his trial counsel had been ineffective in advising him to plead guilty to second-degree murder rather than convincing the state to offer a plea to manslaughter, failing to inform him that the prison sentence under the plea agreement was for flat time, and not objecting to the court's use of his misdemeanor convictions as aggravating factors at sentencing. In addition, Mendoza argued that his Rule 33 counsel had been ineffective in filing a Montgomery notice when she should have raised the claims he identified in his pro se petition. In his reply to the state's response, Mendoza also maintained that trial counsel was ineffective in failing to protect his speedy trial rights.

¶3 The trial court summarily denied Mendoza's petition. It concluded that his claim of ineffective assistance of trial counsel regarding the plea agreement was not colorable, in part because Mendoza "had, by his own statements, provided compelling evidence of premeditation," suggesting that, contrary to Mendoza's assertion otherwise, the state could have established the elements of first-degree murder at trial. As to Mendoza's arguments about his flat-time sentence and his misdemeanor convictions, the court explained they were not supported by the record. And because Mendoza had "failed to raise any colorable claims that would afford him relief," the court also reasoned that Rule 33 counsel "was well within the parameters of professional competence" in filing a Montgomery notice. Finally, the court declined to address Mendoza's speedy trial rights argument because he had failed to timely raise it in his petition.

¶4 Shortly thereafter, Mendoza filed a second notice of post-conviction relief, asserting ineffective assistance of Rule 33 counsel and requesting the appointment of counsel. The trial court denied the notice and the request for counsel, explaining that Mendoza had raised the claim in his first proceeding and the court had denied it. Mendoza now seeks review of the denials in both his first and second proceedings.³

¶5 On review, Mendoza reasserts his claims of ineffective assistance of trial counsel raised in his first proceeding. In its thorough, well-reasoned ruling, the trial court clearly identified those claims and correctly resolved them in a manner that will allow any court in the future to understand. Because the court's findings and conclusions are supported by the record before us, we need not repeat that analysis here and, instead, adopt it.⁴ See State v. Whipple , 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). In addition, however, we note that as a pleading defendant, Mendoza waived "all non-jurisdictional defects and defenses, including claims of ineffective assistance of counsel, except those that relate to the validity of a plea." State v. Banda , 232 Ariz. 582, ¶ 12, 307 P.3d 1009 (App. 2013).

¶6 Mendoza also challenges the trial court's denial of his claim of ineffective assistance of Rule 33 counsel. He seems to suggest he only intended to raise the ineffectiveness of Rule 33 counsel in his second proceeding, but the court denied that notice without appointing counsel.⁵ Although Mendoza's argument is not particularly clear, we agree that the court erred in its treatment of this claim.

¶7 A pleading defendant is entitled to effective assistance of counsel in his first proceeding for post-conviction relief. Osterkamp v. Browning , 226 Ariz. 485, ¶¶ 17-20, 250 P.3d 551 (App. 2011). To effectuate that right, a pleading, indigent defendant is also entitled to counsel—"a different attorney than the one who represented [him] in the first proceeding"—in a timely filed second proceeding. Id. ¶ 20. Otherwise, the right would be "meaningless" because a defendant without legal training or expertise cannot be expected to properly raise and argue claims of ineffective assistance of counsel. Id. ; see also Galaz v. Carruth , 129 Ariz. 368, 370, 631 P.2d 523, 525 (1981) ("Not knowing the subtleties of the law or the pleadings under the Rule, defendant is at a definite disadvantage in presenting his case.").

¶8 Consistent therewith, Rule 33.4(b)(3)(C) provides:

A defendant may raise a claim of ineffective assistance of Rule 33 counsel in a successive Rule 33 proceeding if the defendant files a notice no later than 30 days after the trial court's final order in the first post-conviction proceeding, or, if the defendant seeks appellate review of that order, no later than 30 days after the appellate court issues its mandate in that proceeding.

And Rule 33.5(a) explains that the trial court "must appoint counsel for the defendant" if he files a timely notice under Rule 33.4(b)(3)(C) and meets certain requirements.⁶

¶9 The question presented here is whether a defendant can assert a claim of ineffective assistance of Rule 33 counsel in his first proceeding for post-conviction relief or whether he must do so in a successive proceeding. When interpreting a court rule, we strive to effectuate our supreme court's intent in promulgating the rule, bearing in mind that the best indicator of that intent is the plain language of the rule. State v. Harden , 228 Ariz. 131, ¶ 6, 263 P.3d 680 (App. 2011). In determining a rule's plain language, we read the words in context and consider the scheme as a whole. State v. Mendoza , 248 Ariz. 6, ¶ 12, 455 P.3d 705 (App. 2019).

¶10 As our starting point, Rule 33 expressly neither requires nor precludes a defendant from raising a claim of ineffective assistance of Rule 33 counsel in his first proceeding for post-conviction relief. However, Rule 33.4(b)(3)(C) suggests that such a claim should be brought in a second proceeding: "A defendant may raise a claim of ineffective assistance of Rule 33 counsel in a successive Rule 33 proceeding." Although the rule is permissive, the "may" refers to the defendant's choice to raise a claim of ineffective assistance of Rule 33 counsel. Assuming the defendant chooses to raise such a claim, it seems he must do so in a successive proceeding. Rule 33.2(b)(2) supports this conclusion: "A defendant is not precluded from filing a timely second notice requesting post-conviction relief claiming ineffective assistance of counsel in the first Rule 33 post-conviction proceeding."

¶11 Other provisions of Rule 33—and the caselaw discussing the former rule—also reinforce the conclusion that a defendant should bring a claim of ineffective assistance of Rule 33 counsel in a successive proceeding.⁷ Generally, when Rule 33 counsel files a Montgomery notice, she does not withdraw from representing the defendant but rather continues as the defendant's advisory counsel until the trial court's final order in that proceeding. See Ariz. R. Crim. P. 33.6(c), (e) ; see also State v. Chavez , 243 Ariz. 313, ¶ 8, 407 P.3d 85 (App. 2017). Yet, Rule 33 counsel cannot properly advise the defendant of her own ineffectiveness, in part, because "the ‘standard for determining whether counsel was reasonably effective is an objective standard which ... can best be developed by someone other than the person responsible for the conduct.’ " State v. Bennett , 213 Ariz. 562, ¶ 14, 146 P.3d 63 (2006) (quoting State v. Marlow , 163 Ariz. 65, 68, 786 P.2d 395, 398 (1989) ). Moreover, claims of ineffective assistance of counsel are often fact intensive, requiring, for example, evidence concerning the reason counsel may have acted or declined to act, or what counsel may have told a defendant. See State v. Wood , 180 Ariz. 53, 61, 881 P.2d 1158, 1166 (1994). Asserting claims of ineffective assistance of Rule 33 counsel in the same proceeding in which that counsel is serving as the defendant's advisor may thus create conflicts. See Ariz. R. Sup. Ct. 42, ER 3.7 (except in limited circumstances, lawyer shall not act as advocate at trial in which lawyer likely to be witness); see also Ariz. R. Crim. P. 33.13(a) (defendant entitled to hearing to determine issues of material fact and has right to subpoena witnesses).

¶12 Accordingly, we conclude that claims of ineffective assistance of Rule 33 counsel in a defendant's first proceeding for post-conviction relief must be asserted in a timely, successive proceeding. Cf. State v. Rosales , 205 Ariz. 86, ¶ 8, 66 P.3d 1263 (App. 2003) (claim that counsel was ineffective at resentencing constitutes separate claim, independent of any claim of ineffective assistance of appellate counsel, which must be litigated in different proceeding initiated by timely filing separate notice of post-conviction relief). Indeed, a defendant could not establish prejudice from Rule 33 counsel's purported ineffectiveness without the trial court's ruling in his first proceeding. See State v. Roseberry , 237 Ariz. 507, ¶ 10, 353 P.3d 847 (2015) (to prevail on claim of ineffective...